David A. Plymyer: Political, Social & Random Commentary

Baltimore prosecutor’s office should be investigated for Gray-related murder charge.

The disturbing revelation by The Sun this weekend that Baltimore State’s Attorney Marilyn Mosby or one of her prosecutors may have used a misleading summary of evidence to persuade a grand jury to indict the six Baltimore police officers charged in the death of Freddie Gray demands a formal investigation. The cardinal duty of a prosecutor under the Maryland Lawyers’ Rules of Professional Conduct is to “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” At least as to the second degree murder charge against Officer Caesar Goodson Jr., there is ample reason to initiate an investigation in order to determine if that duty was violated.

When Ms. Mosby announced the charges against the six officers at her press conference on May 1, 2015, it was the murder charge against Mr. Goodson that propelled Ms. Mosby to national prominence. The charge also stunned legal experts. It now appears that Ms. Mosby never had evidence sufficient to prove that charge; Mr. Goodson, who was driving the police van in which Freddie Gray sustained a fatal spine injury last year, was acquitted of all charges against him last week.

The evidence produced at Mr. Goodson’s trial by Ms. Mosby’s two deputies was so weak that it is not immediately apparent what facts would have formed the basis for an objectively reasonable prosecutor to conclude that it was likely that Mr. Goodson committed murder, which is the standard for determining probable cause. In that context, the testimony of Detective Dawnyell Taylor at Mr. Goodson’s trial, claiming that a prosecutor lacked integrity and had ignored evidence in the case, and the contents of her notes impugning the integrity of the grand jury process, reported by The Sun on Sunday, make it imperative that the actions of Ms. Mosby and her attorneys leading up to the indictment of Mr. Goodson be reviewed.

There were warning signs of problems from the start. At her news conference a year ago, Ms. Mosby stated that she made her decision to file criminal charges against the officers based on an “independent” investigation done by her office rather than on the investigation conducted by the Baltimore Police Department (BPD); there is no comparison between the investigatory resources and experience of the two agencies. Ms. Mosby’s statement that she was assisted in her investigation by the Baltimore City Sheriff’s Office was also clouded by an affidavit submitted in a civil suit filed against her by Brian Rice, another officer charged in connection with Gray’s death. Major Samuel Cogen, the commander assigned by the sheriff to assist Ms. Mosby’s office, stated that he was presented with a narrative to include on the statement of charges that he filed against the six officers, and that “the facts, information and legal conclusions contained within … as well as the charges lodged against plaintiff came entirely from members of the state’s attorney’s office.” Mr. Cogen claimed “no involvement in the investigation whatsoever.”

The Sun published a detailed account of the nine days in April 2015 that its reporter spent “embedded” with the BPD task force investigating the death of Freddie Gray. In it, Major Stanley Brandford, in charge of the investigation for the BPD, expressed surprise at the seriousness of the charges brought against the six officers, wondering if his 30-member team could have missed something found by Mosby’s investigators. Three trials later we know that the answer is “no.”

Ms. Mosby put her motives in question with her impassioned “I heard your call — our time is now” speech at that May 2015 press conference. Even liberal legal icon Alan Dershowitz condemned her for confusing “crowd control” with justice, suggesting that she was willing to sacrifice the officers for the sake of quelling the riots in Baltimore. In the words of Linda Stasi of the New York Daily News, Ms. Mosby “delivered her message like [Cate] Blanchett delivers a killer performance. And then she became an instant media star.” Ms. Mosby reveled in the attention, appearing in a Vogue magazine article that drew rebukes from legal professionals. Famed defense lawyer Joe Tacopina summarized the criticism to the Daily Mail Online: “She’s a prosecutor in a very serious, tragic case and she’s making it all about her. She’s making herself a celebrity out of a tragedy.”

Former Maryland Attorney General Douglas Gansler was investigated by the Attorney Grievance Commission and reprimanded by the Maryland Court of Appeals in 2003 for making an “extrajudicial statement” about an ongoing criminal case in violation of his professional responsibilities while he was the Montgomery County state’s attorney. There was no allegation that his statement was false or proof that it caused actual prejudice to the defendant.

If the conduct of Mr. Gansler warranted an investigation, then the conduct of Ms. Mosby and her staff certainly does. Mr. Gansler was accused of engaging in publicity-seeking behavior that could have prejudiced a case; the potential implications of Detective Taylor’s allegations are far worse. A murder charge hung over the head of Officer Caesar Goodson Jr. for over a year. The strain on Mr. Goodson and his family is unimaginable. If Ms. Mosby and her staff are exonerated, fine; if not, then appropriate action will be taken against the lawyers involved. What cannot happen is that the allegations are ignored.

[Published as an op-ed by The Baltimore Sun on June 27, 2016. I did not post the piece until August 5, 2016; the date of posting listed above was altered to place the piece in chronological order.]